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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

Mid America Agri Products/Wheatland 

Industries LLC, appellant, v. 

Perkins County Board of 

Equalization, appellee.

___ N.W.2d ___

Filed August 26, 2022. No. S-21-944.

1. Taxation: Judgments: Appeal and Error. Appellate courts review 

decisions rendered by the Tax Equalization and Review Commission for 

errors appearing on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

3. Taxation: Appeal and Error. Questions of law arising during appellate 

review of the Tax Equalization and Review Commission’s decisions are 

reviewed de novo on the record.

4. Statutes. Statutory interpretation presents a question of law.

5. Administrative Law: Statutes. Agency regulations properly adopted 

and filed with the Secretary of State of Nebraska have the effect of 

statutory law.

6. Taxation: Property: Valuation: Statutes: Time: Dismissal and 

Nonsuit. When a protest of property valuation is not timely filed on or 

before June 30 as required under Neb. Rev. Stat. § 77-1502(1) (Reissue 

2018), the county board of equalization lacks statutory authority to 

review and decide the merits of the protest, and it does not have statutory authority to do anything other than dismiss the protest.

7. Courts: Words and Phrases. A court generally does not read the use of 

the terms “must” and “shall” as permissive rather than mandatory.

8. Taxation: Property: Valuation: Time: Appeal and Error. When a 

county board of equalization lacks authority to review and decide a 

protest of property valuation on the merits because the protest was not 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/07/2022 01:04 AM CDT
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

timely filed, the Tax Equalization and Review Commission likewise 

lacks authority to review the merits of the protest.

Appeal from the Tax Equalization and Review Commission. 

Affirmed.

Frederick D. Stehlik and Zachary W. Lutz-Priefert, of Gross, 

Welch, Marks & Clare, P.C., L.L.O., for appellant.

Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

The Perkins County Board of Equalization (the Board) dismissed the 2021 property valuation protest of Mid America 

Agri Products/Wheatland Industries LLC (Wheatland) because 

it was not timely filed. The Tax Equalization and Review 

Commission (TERC) affirmed the dismissal. Wheatland 

appeals. Wheatland argues that the statutory deadline for 

filing a protest may be waived by a board of equalization 

and that the Board waived the deadline in this case because 

it allegedly accepted the protest and heard argument on the 

merits of the protest. We affirm TERC’s order which affirmed 

the dismissal.

STATEMENT OF FACTS

Wheatland owns a parcel of real estate in Perkins County. 

The Perkins County assessor changed the valuation of the 

property for the 2018 tax year and again for the 2019 tax year, 

and each of these years the assessor sent Wheatland a notice 

of valuation change. Wheatland filed timely protests to the 

valuations for both 2018 and 2019. The valuation for the 2019 

tax year was $13,385,246.

For the 2020 tax year, the assessor did not change the valuation of the property and therefore did not send Wheatland a 
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

notice of valuation change. However, Wheatland filed a timely 

protest to the 2020 valuation. The Board denied Wheatland’s 

protests for the 2018, 2019, and 2020 tax years. Wheatland 

appealed the denials to TERC, and those appeals were still 

pending at the time of the dismissal of the 2021 protest at 

issue in this appeal.

For the 2021 tax year, the assessor again maintained the 

valuation of Wheatland’s property from 2019 and 2020. The 

assessor therefore did not send a notice of valuation change. 

On July 1, 2021, Wheatland’s attorney hand delivered a property valuation protest form to the Perkins County clerk. The 

clerk received the protest on that date, but on July 2, the clerk 

sent a letter to Wheatland informing it that it had missed the 

June 30 deadline to file a protest and that therefore, the protest 

would not be heard by the Board. The Board maintains that 

the 2021 protest was automatically dismissed by operation 

of law.

Notwithstanding the clerk’s letter, Wheatland’s attorney 

attended the July 19, 2021, meeting of the Board. Wheatland 

asserts that despite claiming that its protest was not timely, 

the Board discussed Wheatland’s protest of the 2021 valuation at the July 19 meeting. To the contrary, the Board asserts 

that it did not discuss the 2021 valuation, but, instead, that 

it discussed a TERC hearing that had been held on July 

12 concerning Wheatland’s appeals of the 2018, 2019, and 

2020 valuations.

Wheatland appealed to TERC and claimed that the assessor’s failure to give notice prevented Wheatland from timely 

filing its protest. TERC thereafter entered an order to show 

cause and notice of hearing in which it ordered that a “hearing must be held to determine whether [TERC] has jurisdiction over this matter.” TERC set a hearing date and stated 

that the hearing would only address the jurisdictional issue 

and that a separate hearing on the valuation of the property 

would be scheduled at a later date if TERC determined it 

had jurisdiction.
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

After the hearing, TERC filed an “Order for Dismissal” on 

October 27, 2021. TERC began its analysis by citing Neb. 

Rev. Stat. § 77-5013(1) (Reissue 2018), which provides the 

requirements for TERC to obtain exclusive jurisdiction over an 

appeal. TERC further stated it could not “acquire jurisdiction 

over an issue if the body from which the appeal is taken had no 

jurisdiction of the subject matter.”

Turning to the timeliness of Wheatland’s protest, TERC 

rejected Wheatland’s contention to the effect that it could not 

timely file its protest because the assessor failed to provide 

notice of the 2021 valuation. TERC stated that the assessor 

was not required to send Wheatland a notice for the tax year 

2021 because the assessed valuation of Wheatland’s property 

was not changed from the prior year. See Neb. Rev. Stat. 

§ 77-1315(2) (Reissue 2018).

TERC stated that a statutory remedy existed to challenge a 

property’s assessment, and it cited Neb. Rev. Stat. § 77-1502(1) 

(Reissue 2018), which provides that “[p]rotests regarding real 

property shall be signed and filed . . . on or before June 30.” 

TERC also noted 350 Neb. Admin. Code, ch. 10, § 003.03A 

(2014), which provides in part that “[i]f the protest is not 

timely filed, it will automatically be dismissed.”

In its order, TERC stated that Wheatland did not file its 

protest on or before June 30, 2021, and that Wheatland did 

not dispute that its filing on July 1 was late. TERC noted that 

Wheatland nevertheless argued that the Board “waived any 

issues concerning the timeliness of the protest by ‘accepting’ 

the protest.” Wheatland asserted that the Board accepted the 

protest when the clerk received the protest that its attorney had 

hand delivered on July 1 and told the attorney the date that 

the Board would hold a hearing on protests. Wheatland also 

asserted that the Board discussed Wheatland’s protest at the 

July 19 hearing. TERC noted in its order that witnesses disagreed as to whether Wheatland’s protest of the 2021 valuation 

was discussed at the Board’s hearing and that two members 

of the Board attested they had discussed Wheatland’s appeals 
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

of the 2018, 2019, and 2020 valuations but had not discussed 

the 2021 valuation. TERC stated that a preponderance of the 

evidence did not support a finding that the Board had considered Wheatland’s protest of the 2021 valuation. But TERC 

determined that whether or not the Board had considered the 

protest, TERC consistently applied the rule that subject matter 

jurisdiction may not be created by waiver, estoppel, consent, 

or conduct of the parties. TERC further stated that equitable 

estoppel was not normally applied in administrative proceedings, that TERC did not have equitable power, and that even if 

it had equitable power, the statutes regarding protests provided 

an adequate remedy at law.

In its order, TERC concluded that the Board correctly dismissed Wheatland’s protest because the protest was not timely 

filed. TERC cited Village at North Platte v. Lincoln Cty. Bd. of 

Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), for the proposition that when a statute requires a county board of equalization 

to dismiss a protest, the county board does not have authority 

to do anything except dismiss the protest. TERC further stated 

that “[w]hen a county board correctly dismisses a protest 

because it lacked statutory authority to hear the protest on the 

merits, [TERC] should decline to reach the merits of the appeal 

and affirm the dismissal of the county board.” TERC therefore 

affirmed the Board’s dismissal of the protest and dismissed 

Wheatland’s appeal with prejudice.

Wheatland appeals TERC’s order.

ASSIGNMENT OF ERROR

Wheatland claims, restated, that TERC erred when it 

affirmed the Board’s dismissal of Wheatland’s protest because 

the 2021 protest had not been timely filed.

STANDARDS OF REVIEW

[1,2] Appellate courts review decisions rendered by TERC 

for errors appearing on the record. Betty L. Green Living Trust 

v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911 N.W.2d 551 
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

(2018). When reviewing a judgment for errors appearing on 

the record, an appellate court’s inquiry is whether the decision 

conforms to the law, is supported by competent evidence, and 

is neither arbitrary, capricious, nor unreasonable. Id.

[3,4] Questions of law arising during appellate review of 

TERC’s decisions are reviewed de novo on the record. Id. 

Statutory interpretation presents a question of law. County of 

Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751, 

896 N.W.2d 887 (2017).

ANALYSIS

Wheatland claims that TERC erred when it affirmed the 

Board’s dismissal of Wheatland’s protest because the filing 

of the protest was late. Wheatland argues that its filing of the 

protest on July 1, 2021, did not deprive the Board of authority 

to consider the protest because the June 30 deadline set forth 

in § 77-1502(1) is merely “an administrative timeline which 

an administrative agency has the ability to waive.” Brief for 

appellant at 9. Wheatland further argues that the Board waived 

the June 30 requirement, because it accepted the protest and 

heard argument on the protest, and that therefore, TERC had 

jurisdiction to review the valuation on its merits. We disagree 

with Wheatland’s contention that the June 30 requirement may 

be waived, and we conclude that because the Board did not 

err when it dismissed the protest, TERC did not err when it 

affirmed the dismissal.

In its order, TERC relied largely on Village at North Platte 

v. Lincoln Cty. Bd. of Equal., 292 Neb. 533, 873 N.W.2d 201 

(2016). In Village at North Platte, the taxpayer filed a protest 

that did not meet a requirement of § 77-1502(2) because it 

did not include “a statement of the reason or reasons why the 

requested change [in valuation] should be made.” We noted 

that § 77-1502(2) provided that if a protest failed to “contain 

or have attached the statement of the reason or reasons for the 

protest . . . the protest shall be dismissed by the county board 

of equalization.” We determined in Village at North Platte
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

that because the taxpayer failed to include a statement of 

reason or reasons, the board in that case “did not have [statutory] authority to do anything other than dismiss the protest.” 

292 Neb. at 540, 873 N.W.2d at 206. We further reasoned in 

Village at North Platte that because the board “lacked authority to hear the taxpayer’s . . . protest on the merits of the 

valuation, TERC likewise lacked authority to do so.” 292 Neb. 

at 541, 873 N.W.2d at 207. We concluded that the board in 

Village at North Platte “lacked statutory authority to take any 

other action” than to dismiss the protest and that therefore, 

TERC “correctly declined to reach the merits of the appeal 

regarding the property’s value.” 292 Neb. at 542, 873 N.W.2d 

at 208.

[5] In the present case, Wheatland failed to meet the requirement in § 77-1502(1) that a protest “regarding real property 

shall be signed and filed . . . on or before June 30.” Unlike 

§ 77-1502(2) with regard to the required statement of reason or 

reasons at issue in Village at North Platte, § 77-1502(1) does 

not specifically state that a protest that fails to meet the June 

30 filing requirement must be dismissed by the county board of 

equalization. However, as TERC noted in its order, the applicable regulation, § 003.03A, provides in part that “[i]f the protest 

is not timely filed, it will automatically be dismissed.” Agency 

regulations properly adopted and filed with the Secretary of 

State of Nebraska have the effect of statutory law. Ash Grove 

Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947 

N.W.2d 731 (2020).

[6] We determine that our reasoning in Village at North 

Platte regarding the statutory requirements in § 77-1502 

logically applies to the statutory requirement that a protest 

must be filed on or before June 30. Section 77-1502 provides the statutory authority for a county board of equalization to review and decide protests, and the requirements of 

the statute must be met in order for a board to exercise that 

authority. Section 77-1502 requires that a protest must be 

filed on or before June 30 in order for a board to exercise the 
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

authority. Furthermore, the applicable regulation, § 003.03A, 

specifically provides that a protest that is not timely filed will 

“automatically be dismissed.” Therefore, when a protest of 

property valuation is not timely filed on or before June 30, 

the county board of equalization lacks statutory authority to 

review and decide the merits of the protest, and it does not 

have statutory authority to do anything other than dismiss 

the protest.

Wheatland argues in this case that the Board could, and did, 

waive the June 30 requirement when it allegedly accepted the 

protest and heard argument on the protest. We note that TERC 

stated that the preponderance of the evidence did not support 

Wheatland’s assertion that the Board heard argument on the 

protest; instead, two Board members attested that the Board 

discussed Wheatland’s appeals to TERC of prior years’ valuations but did not discuss the protest of the 2021 valuation. With 

regard to Wheatland’s assertion that the Board accepted the 

protest, we note that after receiving the protest from Wheatland 

on July 1, the clerk sent a letter the next day stating that the 

protest was late and would not be heard.

[7] TERC found that the Board did not “waive” the filing 

deadline, and such filing is supported by the record. However, 

whether or not the Board attempted to waive the June 30 

requirement in this case, the Board did not have authority to 

do so. Wheatland argues that “shall” as used in § 77-1502(1) 

indicates merely a directory, rather than a mandatory, requirement and that as such, the requirement may be waived. We 

disagree. We have stated that we generally do not read the use 

of the terms “must” and “shall” as permissive rather than mandatory. See, Williams v. Williams, 311 Neb. 772, 975 N.W.2d 

523 (2022); Karo v. NAU Country Ins. Co., 297 Neb. 798, 901 

N.W.2d 689 (2017). The requirement in § 77-1502(1) that the 

protest “shall” be filed on or before June 30 is mandatory, 

and timely filing is required in order to give the Board statutory authority to consider a protest. The mandatory nature of 

this requirement is bolstered by the regulation, § 003.03A, 
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Nebraska Supreme Court Advance Sheets

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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

requiring that if the protest is not timely filed, the protest is 

automatically dismissed.

[8] Because the Board was required to dismiss the protest, we determine that it was proper for TERC to affirm 

the Board’s dismissal of Wheatland’s protest. Similar to our 

reasoning in Village at North Platte v. Lincoln Cty. Bd. of 

Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), we conclude 

that when a county board of equalization lacks authority to 

review and decide a protest of property valuation on the merits because the protest was not timely filed, TERC likewise 

lacks authority to review the merits of the protest. Because a 

county board of equalization lacks statutory authority to take 

any other action than to dismiss a protest that is not timely 

filed, TERC, as it did in this case, should decline to reach the 

merits of the appeal of a proper dismissal and instead should 

affirm the dismissal.

Although we read TERC’s order as affirming the Board’s 

dismissal of the protest, there is language in TERC’s order 

referring to “jurisdiction” and stating that the appeal must be 

dismissed for lack of jurisdiction. We noted similar references 

to jurisdiction in Village at North Platte; we recognized that 

TERC’s jurisdiction over an appeal is derived from § 77-5013, 

which we described as providing that

TERC obtains exclusive jurisdiction over an appeal when: 

(1) TERC has the power or authority to hear the appeal; 

(2) the appeal is timely filed; (3) the filing fee, if applicable, is timely received and thereafter paid; and (4) a copy 

of the decision, order, determination, or action appealed 

from, . . . is timely filed.

292 Neb. at 540, 873 N.W.2d at 206-07. We further observed 

in Village at North Platte that § 77-5013(1) provides that 

“‘[o]nly the requirements of this subsection shall be deemed 

jurisdictional’” and that TERC “has the power and duty to hear 

and determine appeals of any decision of any county board of 

equalization” so long as jurisdictional requirements are met. 

292 Neb. at 540, 873 N.W.2d at 207. See, similarly, Karo v. 
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.

Cite as 312 Neb. 341

NAU Country Ins. Co., 297 Neb. at 810, 901 N.W.2d at 697, 

698 (noting distinction between “jurisdictional” and “‘claimprocessing rules’”).

In Village at North Platte, we acknowledged the proposition that if the court from which an appeal was taken lacked 

jurisdiction, then the appellate court acquires no jurisdiction, 

and we determined that a “comparable rule” was applicable 

with regard to appeals to TERC from decisions of boards of 

equalization. 292 Neb. at 541, 873 N.W.2d at 207. We stated 

that when a board of equalization lacks authority to hear a 

protest on the merits, TERC likewise lacks authority to do 

so. In the present case, although it made references to “jurisdiction,” TERC properly recognized that because the Board 

lacked statutory authority to review Wheatland’s protest on 

the merits, TERC also lacked authority to review the merits 

of the protest. TERC therefore properly affirmed the Board’s 

dismissal of the protest.

CONCLUSION

The Board properly dismissed Wheatland’s protest of the 

2021 property valuation because the protest was filed after the 

statutory June 30 deadline, and we therefore affirm TERC’s 

order which affirmed the Board’s dismissal of Wheatland’s 

2021 protest.

Affirmed.